In Re: J.g. v. State Of Washington ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of No. 78338-6-1
DIVISION ONE
J.G.
UNPUBLISHED OPINION
FILED: June 24, 2019
CHUN, J. — After a 72-hour emergency detention for mental health
evaluation and treatment, Auburn Multicare petitioned the trial court for an
additional 14 days of involuntary treatment for J.G. They claimed he posed a
likelihood of serious harm to others. After a probable cause hearing, the trial
court concluded the State had met its burden of proof by a preponderance of the
evidence and ordered the treatment. J.G. appeals, claiming (1) the State failed
to provide sufficient evidence that he presented a likelihood of serious harm to
others, and (2) the trial court failed to properly advise him of the impact that
involuntary commitment would have on his right to possess firearms. Sufficient
evidence supports the trial court's findings and conclusions that J.G.'s mental
health gave rise to a likelihood of serious harm. Additionally, the trial court's
failure to advise on the firearms issue was harmless error. Therefore, we affirm.
I.
BACKGROUND
On March 29, 2018, police responded to a call about J.G., a guest at the
Extended Stay Hotel in Bellevue, Washington. J.G. displayed concerning
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behavior—including paranoia, peeking around corners, and aggressiveness—that
made staff and other guests feel uncomfortable. Upon finding J.G.'s room
empty, two officers proceeded to search the hotel for him.
The officers found J.G. in a fourth floor stairway landing, sweating
profusely and holding a pistol. According to one officer, he had a "thousand-yard
stare" and "looked like he was in a different state of mind." The officers directed
J.G. to drop the weapon. Although he did not comply immediately, J.G. soon
dropped the pistol. The officers handcuffed J.G. and questioned him. They
discovered the pistol was loaded, and that J.G. legally possessed the properly
registered firearm. He also had a valid concealed pistol license.
J.G. explained that he had the gun because he feared for his life.
According to J.G., his ex-girlfriend was being held against her will, possibly on
the roof of the building. He believed men were chasing him as he tried to find
and rescue her. After speaking with J.G., the officers decided to involuntarily
transport him to Overlake Hospital for a mental health evaluation.
After transfer to Auburn Multicare Medical Center, J.G. was detained for
72 hours of psychiatric evaluation and treatment. On April 2, 2018, Auburn
Multicare filed, and personally served J.G. with, a petition for an additional 14
days of inpatient treatment. The petition claimed J.G. suffered from a mental
disorder presenting a likelihood of serious harm to himself and others.'
1 The petition for involuntary commitment also included the ground that J.G. was "gravely
disabled." The State did not raise this issue at the probable cause hearing and it was not a basis
for the court's decision.
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The petition stated that J.G. had been advised of the need for voluntary
treatment but had not accepted it. The petition also asserted that J.G. had been
advised that involuntary commitment pursuant to the petition would result in a
loss of firearm rights.
The trial court conducted a probable cause hearing on April 4, 2018.2 The
court determined the State had shown by a preponderance of the evidence that
J.G. presented a substantial risk of serious harm to others. The court found that
"ongoing paranoia and delusions endorsed by the Respondent throughout his
subsequent hospitalization and during his testimony in the probable cause
hearing establish a continuing risk of harm to others based on the Respondent's
perceived need to possibly defend himself with deadly force." The court
committed J.G. to 14 days of inpatient mental health treatment. At the
conclusion of the hearing, the trial court advised J.G. that he had lost his right to
possess firearms as a result of the decision.
J.G. appeals.
II.
DISCUSSION
A. Sufficiency of Evidence
The trial court granted the State's petition for 14 days of involuntary
intensive mental health treatment on the ground that J.G. posed a likelihood of
serious harm to others.3 J.G. claims the trial court's decision to commit rested on
2 The probable cause hearing was initially set to take place on April 3, 2018, but the State
received a continuance due to the unavailability of a material witness.
3 As an initial issue, the parties agree this case is not moot despite the expiration of J.G.'s
commitment order. "An individual's release from detention does not render an appeal moot
where collateral consequences flow from the determination authorizing such detention." In re
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assumptions and unsupported findings resulting in insufficient evidence of a
mental disorder. The State argues the credibility determinations and factual
findings support the trial court's conclusions. We agree.
A court may order a person for 14 days of involuntary treatment if the
State demonstrates by a preponderance of the evidence that, as a result of a
mental disorder, the person presents a likelihood of serious harm or is gravely
disabled. RCW 71.05.240(3); In re Detention of W.C.C., 193 Wash. App. 783, 785-
86, 372 P.3d 179 (2016). A "mental disorder" is an organic, mental, or emotional
impairment that "has substantial adverse effects on a person's cognitive or
volitional functions." RCW 71.05.020(37). A "likelihood of serious harm" means
"a substantial risk" of physical harm to self, others, or the property of others.
RCW 71.05.020(35)(a). For a finding of substantial risk of harm to others, the
State must demonstrate "behavior which has caused such harm or which places
another person or persons in reasonable fear of sustaining such harm."
RCW 71.05.020(35)(a)(ii).
Where, as here, the trial court has weighed the evidence, we limit our
review to determining whether substantial evidence supports the findings and, if
so, whether the findings support the conclusions of law and judgment. In re
Detention of A.S., 91 Wash. App. 146, 162, 955 P.2d 836 (1998); W.C.C., 193 Wn.
App. at 793. "Substantial evidence is 'evidence in sufficient quantum to
persuade a fair-minded person of the truth of the declared premise." A.S., 91
Detention of M.K., 168 Wash. App. 621, 626, 279 P.3d 897 (2012). Commitment orders have
collateral consequences because subsequent commitment proceedings consider prior history of
involuntary commitment. RCW 71.05.012, .212, .245; M.K., 168 Wash. App. at 628-29. Given
these consequences, J.G.'s appeal of his commitment order is not moot.
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Wn. App. at 162 (quoting Holland v. Boeing Co., 90 Wash. 2d 384, 390, 583 P.2d
h'
621 (1978)). The challenging party must demonstrate that substantial evidence
does not support a finding of fact. A.S., 91 Wash. App. at 162. We do not review
credibility determinations. In re Detention of H.N., 188 Wash. App. 744, 763, 355
P.3d 294 (2015).
J.G. argues the trial court erroneously based its findings on the absence of
evidence as shown by the trial court's statement that J.G.'s account was "too
fanciful . . . to be considered as based in reality." Similarly, in discussing J.G.'s
mental state, the trial court noted, "the police searched this hotel . . . and I didn't
hear any testimony that they found anything out of the ordinary. There wasn't a
paramilitary force, helicopters, people with guns, a large number of men in suits,
or drug dealers or something else out to get [J.G.]." While J.G. contends these
statements are unsupported by evidence, they stem from the trial court's
conclusions about the credibility of various testimony.
The trial court expressly found the psychological testimony credible.
Licensed clinical psychologist Bethany O'Neill testified that J.G. "has a significant
delusional system in place that has perseverated throughout his hospital stay
about people holding a friend or ex-girlfriend hostage, that there have been
people after him." According to hospital records, J.G. felt that people were
following him, and he heard voices and the sound of a rifle being loaded and
cocked in the hallway outside his door. J.G. reported having an auditory
hallucination and had recently sought a mental health evaluation. J.G. informed
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hospital staff that he feared for his life and needed to protect himself. Dr. O'Neill
noted J.G.'s poor insight into his mental health treatment needs:
He still gets upset and believes that his delusional system is real, that
it's all of us that just aren't understanding; no insight into the need for
treatment or medication; freely admits and says that he will stop the
medication once he leaves the hospital; denies the need for
treatment and clearly has no insight into this situation and how clearly
dangerous it is.
She also summarized the substantial risk of harm due to J.G.'s delusions: "This
is a recipe for disaster if he's released today, as-is, and quite frankly, the danger
is that he is going to inadvertently shoot someone because he believes his own
delusions up through yesterday and/or get himself shot by police for brandishing
a weapon."
The trial court based its findings on J.G.'s mental hbalth on this
psychological testimony, rather than merely the absence of evidence confirming
the reality of his delusions. This testimony provides substantial evidence to
support the trial court's findings about J.G.'s mental health, including that he
"suffers from a mental/emotional impairment currently diagnosed as psychosis
(not otherwise specified)," and that his "mental/emotional impairment has a
substantial adverse effect on his cognitive and volitional functions, as evidenced
by symptoms such as mood lability, significant delusional thought process, and
paranoia."4
In addition to finding Dr. O'Neill's testimony credible, the trial court found
J.G.'s testimony lacked credibility "insofar as it was substantially impacted by his
4 The trial court's order includes these statements as conclusions of law. Findings of fact
mislabeled as conclusions of law are reviewed as findings of fact. Willener v. Sweetinq, 107
Wash. 2d 388, 394, 730 P.2d 45(1986).
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delusional thought process." Furthermore, the trial court found credible the
responding police officer's testimony as to his fear upon encountering J.G. in the
hotel stairwell with a loaded weapon. These credibility determinations are not
reviewable on appeal. See H.N., 188 Wash. App. at 763. Taking these credibility
assessments into account, substantial evidence supports the trial court's finding
that J.G. suffered from a mental disorder which placed another person in
reasonable fear of harm. These findings of fact support the conclusion of law
that J.G. posed a substantial risk of inflicting serious harm on another person.
Therefore, we conclude the trial court did not err in ordering 14 days of
involuntary treatment.
B. RCW 71.05.240(2)
Under RCW 71.05.240(2), the trial court must notify the patient of the
impact of involuntary commitment on the right to possess firearms during the
probable cause hearing:
If the petition is for mental health treatment, the court at the time of
the probable cause hearing and before an order of commitment is
entered shall inform the person both orally and in writing that the
failure to make a good faith effort to seek voluntary treatment as
provided in RCW 71.05.230 will result in the loss of [their] firearm
rights if the person is subsequently detained for involuntary treatment
under this section.
Here, the trial court informed J.G. of the loss of his firearm rights at the
conclusion of the probable cause hearing and after announcing the order of
commitment. The State concedes "the trial court neglected to give the statutorily
required advisement in [J.G.'s] case."
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J.G. contends the trial court's failure to comply with the notification
requirements in RCW 71.05.240(2) deprived him of the opportunity to preserve
his constitutional right to bear arms. However, J.G. did not raise the issue below.
An appellate court may refuse to review any error not raised in the trial court.
RAP 2.5(a). As an exception to this general rule, a party may raise a manifest
error affecting a constitutional right for the first time on appeal. RAP 2.5(a)(3).
"The defendant must identify a constitutional error and show how the alleged
error actually affected the defendant's rights at trial." State v. Kirkman, 159
Wash. 2d 918, 926-27, 155 P.3d 125 (2007). In supplemental briefing, J.G.
acknowledged the failure to preserve the error below and argued manifest
constitutional error subject to review under RAP 2.5(a).
Assuming, without deciding, that the trial court's failure to comply with
RCW 71.05.240(2) amounts to a manifest constitutional error, the trial court's
omission is subject to a stringent harmless error analysis. See State v. O'Hara,
167 Wash. 2d 91, 99, 217 P.3d 756 (2009). "[The exception does not help a
defendant when the asserted constitutional error is harmless beyond a
reasonable doubt." State v. Scott, 110 Wash. 2d 682, 687, 757 P.2d 492 (1988).
Here, the trial court did not provide the advisement required by
RCW 71.05.240(2). However, J.G. received notice of the impact of involuntary
commitment on his right to own a firearm through the petition for commitment.
The petition for involuntary commitment stated that J.G. had been advised of the
need for voluntary treatment but had declined. The petition also included the
sworn statement that "respondent has been advised that involuntary commitment
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pursuant to this 14-day petition will result in the loss of firearm rights."
Additionally, hospital staff noted that as he prepared for court, J.G. stated he did
not want to lose his gun rights.
Based on the record, J.G. received the information that involuntary
commitment would lead to the loss of his firearm rights. Moreover, the record
lacks any indication that the advisement would have resulted in a different
outcome. J.G. did not accept voluntary treatment. He demonstrated poor insight
into his need for treatment and admitted he would stop medication after leaving
the hospital. Therefore, the omission was harmless beyond a reasonable doubt.
While we reach the conclusion that the error was harmless, we emphasize
that RCW 71.05.240(2) is mandatory. The advisement must be given in a
probable cause hearing prior to entry of an order of commitment.
Affirmed.
-,....,, .
WE CONCUR:
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